Solicitor General files invitation briefs for June 6 Conference

Posted Sat, May 18th, 2013 3:52 pm by Amy Howe

Every Term, thousands of litigants file petitions for certiorari, asking the Justices to review their cases on the merits. In roughly a dozen, the Justices initially neither grant nor deny review. Instead, they issue an order “invit[ing] the Solicitor General to file a brief expressing the views of the United States” – also known as a “CVSG,” for “call for the views of the Solicitor General.” There is no deadline for the Solicitor General to file these “invitation” briefs, but the government has traditionally filed a group of them in May so that the Justices can consider the petitions before their summer recess begins in late June. We expect the government to file approximately a dozen of these invitation briefs in May.

The Solicitor General has now filed the first batch of briefs in response to those invitations from the Court. The parties to the cases will now have the opportunity to file supplemental briefs responding to the Solicitor General’s submissions. We expect the Justices to consider the following three cases at their June 6 Conference:

BG Group PLC v. Republic of Argentina (filed May 10, 2013): This case involves a bilateral investment treaty between the United Kingdom and Argentina; the treaty provides that before a foreign investor may pursue arbitration of an investment dispute with the host country, the investor must first litigate the dispute in the host country’s court for at least eighteen months. The petitioner, a U.K. company that invested in a newly privatized gas company in Argentina, sought arbitration without first complying with the eighteen-month period, and the arbitrators held it acted properly. But the D.C. Circuit held that a court must decide that question, and that the arbitration was void. The petitioner asks the Court to determine whether a court, rather than the arbitral panel, must decide the issue. The company alleges that the D.C. Circuit created a circuit split by holding that courts, rather than arbitrators, presumptively determine compliance with a precondition to arbitration.

The Solicitor General has recommended that the Court deny cert. in the case. He contends that the lower court’s “case-specific conclusions do not conflict with any decision of” the Supreme Court or any other court of appeals. Moreover, he suggests, the treaty’s litigation requirement “appears to be uncommon in international treaty practice”; as a result, the impact of the lower court’s decision is likely to be relatively narrow, and the case is in any event “an unsuitable vehicle for establishing general principles governing the interpretation of” other arbitration agreements.

[Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.]

Arzoumanian v. Munchener Ruckversichersungs-Gesellschaft Aktiengesellschaft AG (filed May 10, 2013): A California law allows victims of the Armenian genocide that occurred in the Ottoman Empire in the early twentieth century (as well as their heirs) to file insurance claims arising out of that genocide and extends the statute of limitations for those claims. The petitioners – who are the heirs to life insurance policies that were never paid – ask the Court to determine whether (as the en banc Ninth Circuit held) the state law is preempted (i.e., invalid under federal law) under the foreign affairs doctrine.

The Solicitor General has recommended that cert. be denied. He tells the Court that the decision below is correct, that there is no conflict with either Supreme Court precedent or the decision of any other court of appeals, and that the case “does not present a question of broad importance.”

Harris v. Quinn (filed May 10, 2013): An Illinois program provides assistance to individuals eligible for Medicaid, to allow them to remain in their homes rather than face the prospect of institutionalization. In 2003, the “personal assistants” who provide much of this assistance, and are paid by the state for their services, voted to form a union; their representative then entered into a collective bargaining agreement with the state that (among other things) required the state (on the union’s behalf) to deduct from the paychecks of non-union members “fair share” fees that would cover “their proportionate share of the costs of the collective bargaining process, contract administration, and pursuing matters affecting wages, hours and other conditions of employment.” The petitioners are personal assistants who challenge the deduction of the “fair share” fees, arguing that they violate the First Amendment.

The Solicitor General has recommended that certiorari be denied. He tells the Court that the lower court’s decision is correct, and that there is no conflict between that decision and the decisions of either the Supreme Court or other courts of appeals.

We will cover the next batch of invitation briefs, which will be slated for the Court’s June 13 Conference, in a new post next week.

Trinity Lutheran Church of Columbia, Inc. v. ComerThe Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Hernández v. Mesa(1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.